FWC to rule on modern award and NES clashes

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FWC to rule on modern award and NES clashes

The FWC will have to reconcile a number of alleged inconsistencies between the National Employment Standards and a number of provisions in modern awards.

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The Fair Work Commission (FWC) will have to reconcile some alleged inconsistencies between the National Employment Standards and a number of provisions in modern awards. The issue has been drawn to its attention by the Fair Work Ombudsman, employer groups and unions as part of the 4 yearly modern award review.

The full bench of the FWC has issued a statement that it will consider and fix, as required, the inconsistencies identified across all 122 modern awards, in five categories.

Category 1 provisions which are concerned with restrictions on the payment of annual leave loading upon termination of employment. These will be heard by the Annual Leave Full Bench.

Category 2 provisions relate to the Textile, Clothing, Footwear and Associated Industries Award 2010 and will be dealt with as part of the review of that particular award.

Category 3 provisions relate to those awards where there appears to be agreement as to both the existence of an inconsistency with the NES and the award variation appropriate to remedy that inconsistency. 

Category 4 provisions include those where there appears to be agreement as to the existence of an inconsistency with the NES, but no agreement as yet concerning the appropriate remedial award variation. The FWC will accept submissions relating to categories 3 and 4 provisions up until 21 November 2014.

Category 5 provisions are those where agreement has not yet been reached as to whether they are inconsistent with the NES. Further submissions on this category may be made until Thursday 26 February 2015.

In April, the Fair Work Ombudsman’s legal counsel Janine Webster wrote to the FWC identifying terms conflicting with the NES (in some cases in multiple awards) in the areas of:
  • annual leave accrual
  • entitlements to personal/carer's and compassionate leave
  • notice of termination
  • payment for absences on public holidays, and
  • payment of annual leave loading on termination.
The FWC has set up an Alleged NES Inconsistencies page on its website which includes a summary table where the issues can be viewed by the particular award or by relevant issue.

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